Smt. Shantha vs Smt.Dhanalakshmi( Deleted As Per Order on 10 June, 2021

[Cites 15, Cited by 0]

Bangalore District Court

Smt. Shantha vs Smt.Dhanalakshmi( Deleted As Per Order on 10 June, 2021

IN THE COURT OF THE XXXVIII ADDITIONAL CITY CIVIL
           JUDGE AT BENGALURU CITY

         Dated this the 10th Day of June 2021

                        Present
    Sri Devanand Puttappa Nayak B.A., LL.B.,(Spl.)
   XXXVIII Additional City Civil & Judge,Bangalore City.

              ORIGINAL SUIT NO. 8359/2008


PLAINTIFF:

       Smt. Shantha, D/o Late Tallam Seethrama
       setty,W/o Sri.C.D.Srinivasa Murthy, Aged
       about 61 years,At present r/at No.159A, 2nd
       main road, Yadavagiri, Mysore570020.


             [By Sri. B.Bhavani Shankar Rao, Advocate]

                        / Versus /

DEFENDANTS:

     1. Smt.Dhanalakshmi( deleted as per Order
        dt.17.9.2009)

     2.Sri.T.Suresh, S/o late T.Seetharama Setty,
       aged about 63 years,      R/at No.5, 1st
       main road,        Gandhinagar, Bangalore
       560009.

     3.Sri.T.S.Prabhakar,S/o late T.Seetharama
       Setty,aged about 58 years, R/at No.5, 1st
       main road,Gandhinagar,Bangalore560009.

       [ D2 placed exparte; D3 by Advocate Sri
         VBS]
                                   2
                                                  OS.NO.83592008


Date of Institution of the suit       :          15/12/2008
                                              Partition, Separate
Nature of suit                        :       Possession & Mesne
                                                     Profits
Date of commencement of
Evidence                              :          22/11/2017

Date on which the judgment is
pronounced                            :          10/06/2021

                                               Years Month Days
Duration taken for disposal               :
                                                12    05   25

                           JUDGMENT

This is a suit filed by the Plaintiff against the Defendants for partition and separate possession and also declaration and mesne profits.

2. The case of the Plaintiff is that herself, Defendant Nos.2 and 3 are the daughter and sons of deceased T.Seetharama Setty and Smt.Dhanalakshmi, who is the 1st Defendant in this case. The eldest son T.S. Shashikumar died unmarried on 15/05/1967.

Further Plaintiff submits that herself, her mother1st Defendant, brothersDefendants No.2 and 3 along with their father T.Seetharama Setty, constituted a Hindu Undivided Family. Further Plaintiff 3 OS.NO.83592008 submits that T.Seetharama Setty died on 07/11/1964 leaving behind him, his legal heirs i.e plaintiff and defendants. Late T.Seetharama Setty left behind immovable and movable properties belong to Hindu Undivided Family comprising of ancestral properties and properties acquired from the income of the Hindu Undivided Family of which T.Seetharama Setty was the Kartha. Further Plaintiff submits that the said Hindu Undivided Family had also a joint family business run in the name and style M/S.Tallam Subbaraya Setty and Sons. The immovable properties belong to Hindu Undivided Family of which T.Seetharama Setty, who is the father of the plaintiff was the Kartha. Here the Joint Family properties are mentioned as suit A schedule properties and Joint Family business is described as suit schedule B property.

Further plaintiff submits that her mother 1st defendant was expressing her intention that plaintiff is entitled a share in immovable properties left behind by 4 OS.NO.83592008 late T.Seetharama Setty. The other defendants when they have been cordial with the plaintiff, have not opposed the intention of the Defendant No.1.

The Plaintiff further submits that there was change in the attitude of 2nd and 3rd defendants towards the plaintiff since there was a set back in the health of 1st defendant in the year 2003. The health of 1st defendant went on deteriorating and she became unable to walk and bed ridden since the year 200405. The 2nd and 3rd defendants gradually became indifferent to the plaintiff. Infact, the 1 st defendant was not able to recognize the plaintiff as her daughter since the year 200405 wherever the plaintiff visited the 1st defendant to inquire her health. In the month of October 2008 the plaintiff grew suspicious about the possibility of the 2nd and 3rd defendants depriving the share of the plaintiff in the A schedule properties in which 1st defendant having a share. Further plaintiff submits that the business described in the schedule B 5 OS.NO.83592008 was also a Joint Family business run in the name and style of M/S.Tallam Subbaraya Setty and Sons which was run in partnership with T.Seetharama Setty as one of the partners. After ten years of the death of T.Seetharama Setty, the defendants are stated to have withdrawn the share capital, goodwill and all other benefits due consequent on the death of the partner T.Seetharama Setty, without the knowledge and consent of the plaintiff. Plaintiff does possess a share in the said funds and benefits. Further plaintiff submits that she is neither relinquished her right and interest nor consented to give up the same, and the defendants are liable to make good to the plaintiff her share.

Further plaintiff submits that she came to know that the defendants No.2 and 3 fraudulently created documents to deprive the share of the plaintiff in the schedule properties. Further plaintiff submits that she came to know as early as in the year 1966 soon after the marriage of the plaintiff when she was hardly 19 6 OS.NO.83592008 years old, having no knowledge of the family properties and funds, a document dated 14/12/1966 alleged to be a partition deed was got executed by her brothers fraudulently, forcing their mother, the 1st defendant to get signature of the plaintiff. The 2 nd and 3rd defendants along with their brother T.S.Shashi Kumar who was living at that time, had obtained the signature of the plaintiff fraudulently by exercising undue influence on the 1st defendant being forced by defendants No.2 and 3 along with late T.Seetharama Setty. Further plaintiff submits that there was no consideration amount paid to her of Rs.50,000/ which was stated to have been shown as paid by crediting to the Account of the plaintiff in the Books Account of the firm M/s.Tallam Subbraya setty and sons. Further plaintiff submits that the other members of the family of late T.Seetharama Setty family namely his wife and sons i.e mother and brothers of the plaintiff though their names are shown in the said alleged partition 7 OS.NO.83592008 deed, had not joined in the execution of the deed. The said alleged deed dated 14/12/1966 as partition deed has no legal effect whatsoever and no consideration passed to the plaintiff and said document dated 14/12/1966 is a sham document and the same is not binding on the plaintiff.

It is also submitted by the plaintiff that the allegation made in the plaint that a portion of Rs.50,000/ was drawn towards marriage expenses and cost of making jewelery, is absolutely false. Further plaintiff submits that she now remembers that the 2 nd and 3rd defendants had requested her to sign some papers which were signed in good faith without questioning. Further plaintiff submits that it is not known to her for what purpose her signatures were obtained. Further plaintiff submits that 1st defendant was suffering from Alzheimer's disease in the year 200304. Further plaintiff submits that she is entitled ¼ share in all properties left behind by T.Seetharama 8 OS.NO.83592008 Setty including the share of T.Seetharama Setty in the Joint Family business M/S. Subbaraya Setty and Sons, from which defendants had withdrawn the funds and the benefits acquired on the death of T.Seetharama Setty without knowledge of the plaintiff and consent. Further plaintiff submits that she has neither consented nor relinquished her right, title and interest in the share of her father as partner in the said Joint Family business and she is entitled her share in the share of her father as partner in the said Joint Family business described as B schedule property of the plaint.

Further plaintiff submits that she came to know that 1st defendant became mentally so weak that she could not know what she was doing. Her thumb impression was obtained and a document stated to be a Release deed dated 14/12/2006 at the residence and same is registered by the 2nd defendant fraudulently. Since more that 2 years earlier to 14/12/2006, the 1 st defendant was not able to recognize the plaintiff, she 9 OS.NO.83592008 was not able to respond to questions as all her senses were impaired. Further plaintiff submits that the thumb impression of 1st defendant was obtained at residence when she was not knowing what she was doing and incapable of knowing the contents and nature of the document alleged to be the Release deed dated 14/12/2006. Further plaintiff submits that the 1st defendant being a literate enough, was signing in Kannada. The recitals made in the alleged Release deed dated 14/12/2006 showing cash consideration of Rs.1,00,000/ is absolutely false. The entire document is a fabricated one and invalid in law. The alleged Release deed dated 14/12/2006 had been taken in favour of the Hindu Undivided Family M/s T.Seetharama Setty which is not at all a legal person or legal entity capable of executing any document or in whose favour a document can be executed. Therefore, the said document dated 14/12/2006 was created fraudulently to deprive the share of the plaintiff in Item 10 OS.NO.83592008 No.1 of the schedule property and the said document is in invalid in law and not binding on the plaintiff. Further plaintiff submits that there is no any partition in respect of the schedule properties among the Hindu Undivided Family so far after the death of T.Seetharama Setty who is Kartha and Head of the Hindu Undivided Family comprising of plaintiff and the defendants.

Further plaintiff submits that alleged partition deed dated 14/12/1966 and alleged Release deed dated 14/12/2006 are not only binding on the plaintiff on her share in schedule properties. Therefore if any of the schedule properties are alienated, plaintiff has to be compensated for her share while dividing the suit properties. Therefore the plaintiff is entitled 1/4th share in the suit properties and 1/3 rd share in 1/4th share of the 1st defendant on her demise as she has not executed any Will or alienated her share when she was hale and healthy bodily healthy and mentally. 11

OS.NO.83592008 The cause of action for filing of this suit arose in or about October 2008 when the plaintiff came to know about the alleged Release deed dated 14/12/2006 and also about the fraudulent document dated 14/12/1966, in the 2nd week of October 2008 in respect of the schedule properties, situated within the jurisdiction of this Court. Therefore, the plaintiff requested the Court to decree the suit as prayed in prayer column of the plaint.

3. In this case, only 3rd defendant filed Written Statement. In the Written Statement filed by the 3 rd defendant, she took contention that the suit filed by plaintiff is not maintainable in law or facts and the same is liable to be dismissed in limine.

Further 3rd defendant contended that the plaintiff has suppressed several material facts which are occurred for a period of 42 years and filed this suit only to give harassment to the 3rd defendant. 12

OS.NO.83592008 In para4 of the Written Statement, defendant No.3 took contention that the suit filed by the plaintiff against the defendant No.3 pertaining to both A and B schedule properties is not maintainable. The suit is liable to be dismissed. The plaintiff approached the Court after the period of 42 years puttingforth her claim on the basis of certain false and incorrect allegations as averred in the plaint.

In para5 of the Written Statement, the 3 rd defendant submits that the plaintiff along with Chinna Subbamma, the grand Mother of 2nd and 3rd defendant and plaintiff, voluntarily on 14/12/1966 approached Smt.Dhanalakshmi who is mother of the plaintiff and defendants, who had interest in the property of late T.Seetharama Setty and T.S.Shashikumar mentioning that Joint Family of Tallam Seetharama Setty shall continue and they intended to relinquish their personal rights in respect of the properties that belongs to Tallam Seetharama Setty who died intestate on 13 OS.NO.83592008 07/11/1964 leaving behind him, his mother late Chinna Subbamma, his wifeSmt.Dhanalakshmi and the plaintiff who was unmarried at that time and three sons, defendant Nos.2 and 3 and T.Shashikuma as his heirs to succeeded to his interest in the personal properties and Joint Family. Therefore, the deed was voluntarily executed in the presence of SubRegistrar and parties together with witnesses. The Joint family continued to held property and Kartha was T.Shashikumar. After death of T.Shashikumar, the 2 nd defendant being Kartha, the Joint family was that of coparceners only.

The Defendant No.3 further submits that on 14/12/1966, it was specifically taken into consideration that what was available on the death of T.Seetharama Setty in reference to the immovable properties as described in the schedule together with movables was the interest of plaintiff, Chinna Subbamma and Smt.Dhanalakshmi, who were not the 14 OS.NO.83592008 members of the Joint Family, but they had only acquired interest and law permitted them to hold any interest. In the circumstances plaintiff had relinquished her right along with Chinna Subbamma by execution of deed of partition upon receipt of an amount of Rs.50,000/. The plaintiff insisted that the amount of Rs. 50,000/ shall be kept in deposit and a portion of Rs.50,000/ was drawn for jewelery at the time of her wedding and balance was deposited in M/s Tallam Subbaraya Setty and Sons, as per her wish in her own interest without being any computation in any manner whatsoever. That amount was kept by the plaintiff and thereafter she voluntarily took money for the purposes of her investment.

The Defendant No.3 further submits that the Plaintiff knowing fully well that she executed registered deed and it was well within her knowledge and she executed the sale deed consciously, and by passage of time that too after 42 years it was made 15 OS.NO.83592008 known of her of her rights on the date of execution. Apart from the the plaintiff attended several functions and ceremonies.

Further in Para8 of Written Statement, the 3rd defendant took contention that on execution of the deed of relinquishment on 14/12/1966, the Joint Family constituted defendant No.2 and 3 and T.Shashikumar continued till he died. After his death the joint family continued constituting as that of 2nd and 3rd defendants. The Joint family of Tallam Subbaraya Setty by Kartha T.Suresh and 3 rd defendant were the Hindu Undivided Family.

In Para9 of the Written Statement the 3rd defendant took contention that Smt.Dhanalakshmi who is the 1st defendant in this case, was not the member of the Joint Family and she has given up her right as a widow of Tallam Seetharama Setty in the deed of partition dated 14/12/2006, but she continued to live in the Joint Family in her own right as dependent upon 16 OS.NO.83592008 defendant Nos.2 and 3. Further 3rd defendant stated that Chinna Subbamma also continued to live, despite of she having executed the deed relinquishing her right on 14/12/1966, therefore it cannot be said that plaintiff had a right either by herself or through the 1 st defendant till her life time to file the plaint and seek relief.

In Para10 of the Written Statement, the 3 rd defendant submits that Smt.Dhanalakshmi while in sound state of mind and health, without there being any hindrances with regard to her mental stability and that she was in the fitness of state of health in which she was on 14/12/2006 relinquished her rights by executing a release deed. What was relinquished by her was her right as widow of Tallam Seetharama Setty.

Further in Para11 of the Written Statement 3 rd defendant submits that the plaintiff, Chinna Subbamma and Dhanalakshmi had only minimum right as heir and that right of being dependent on the Joint 17 OS.NO.83592008 Family and on their respective relinquishment, their right got extinguished. Therefore plaintiff's right cannot be taken into consideration as a right to claim division.

Further 3rd defendant in Para12 of the Written Statement contended that plaintiff has alleged stating that there was a set back in the health of the 1 st defendant and her health was deteriorating from 2004 05 and she was bed ridden, is a false statement. The partnership firm of Tallam Subbaraya Setty and Sons, had a nomenclature, but did not have had the characteristic of a Hindu Undivided Family. It was a firm of partners. On the death of T.Seetharama Setty the Firm got dissolved and then had reconstituted by operation of law.

In Para13, the 3rd defendant took contention that plaintiff was 19 years on 14/12/1966, she was educated, matured, married and she was guided properly. Further submits about 2 decades ago, the 18 OS.NO.83592008 plaintiff was elected as Director of leading cooperative Society in Mysore for more than one term and she knew what she was doing. Further the allegation made by the plaintiff that signatures obtained by playing fraud, is false. Further defendant No.3 submits that the allegations made in the Para7 of the plaint by the plaintiff stating that 1st defendant was mentally weak and she could not know what she was doing and at that time, her thumb impression were obtained on a document alleged to be a release deed of the 2 nd defendant and it is a fabricated statement made without responsibility.

Further defendant No.3 submits that the 1st defendant knew that she was good and fit in health and she was able to represent her personal things and attend by herself. Therefore the allegations made by the plaintiff in plaint that the 1st defendant was ailing only 3 months prior to her death and thereafter she was bed ridden, is a false statement. Therefore, 3 rd 19 OS.NO.83592008 defendant requested the Court to dismiss the suit filed by the plaintiff.

4. In this case, I.A.No.18 filed by the Defendant No.2Society u/O 9 Rule 7 R/w Sec.151 of C.P.C. for setting aside the exparte Order dt.25.7.2009 was rejected on 15.8.2019, therefore the Defendant No.2 has not filed the Written Statement.

5. On perusal of the pleadings of the plaint and the Written Statement filed by the Defendant No.3, my predecessor has framed the following Issues:

1. Whether Plaintiff proves that suit schedule 'A' properties are joint family properties and the business run under the name and style M/s Thallam Subbaraya Shetty and Sons was joint family business, consisting of herself and Defendants?

2. Whether Plaintiff proves that she is entitled to 1/3rd share in suit schedule properties?

3. Whether Defendant No.3 proves that by executing of Relinquishment Deed dt.14.12.1966, Plaintiff had relinquished her right, interest and title over the properties belongs to their father late Sri T.Seetharam Shetty?

OS.NO.83592008

4. Whether Defendant No.3 proves that by executing Partition Deed/Release Deed dt.14.12.2006 his mother deceased Smt.Dhanalakshmi had relinquished her share in the properties belonged to his father late Sri T.Seetharama Shetty?

5. Whether Plaintiff proves that by practicing fraud and undue influence and by force Defendants had got executed Partition Deed (Deed of Relinquishment) dt.14.12.1966 from her and hence same is not binding on her?

6. Whether Plaintiff proves that for the reasons stated in para No.7 of her plaint the release deed(partition Deed) dt.14.12.2006 executed by her mother late Smt.Dhanalakshmi is not binding on her?

7. Whether suit of Plaintiff is in time?

8. Whether Court Fee paid by Plaintiff on her plaint is proper and sufficient?

9. Whether Plaintiff is entitled to the reliefs sought for?

10. What decree or Order?

6. In this case, the Plaintiff herself adduced her oral evidence by filing her Sworn Affidavit considered as PW1 and in further chiefexamination of PW1, the documents produced by him are marked as Ex.P1 to P5. No 21 OS.NO.83592008 independent witness has been examined by the side of Plaintiff in support of her case. On the other side, the Defendant No.3 adduced his oral evidence as DW1 and in further chiefexamination of DW1, the documents produced by him are marked as Ex.D1 to D23, Ex.D23(a) to (r), Ex.D24, Ex.D24(a) to (h) and Ex.D25 to D28. No independent witness has been examined by the side of Defendant No.3 in support of defense took in her Written Statement. After heard the arguments, the case posted for judgment.

7. My findings on the Issues framed in this case are as under:

     Issue No.1:       In the Negative
     Issue No.2:       In the Negative
     Issue No.3:       In the Affirmative
     Issue No.4:       In the Affirmative
     Issue No.5:       In the Negative
     Issue No.6:       In the Negative
     Issue No.7:       In the Negative
     Issue No.8:       In the Affirmative
     Issue No.9:       In the Negative
                              22
                                           OS.NO.83592008

     Issue No.10:     As per Final Order, for the following
                      reasons:
                        REASONS
Issue No.1:

8. This is a suit filed by the Plaintiff against the Defendants for partition and separate possession and also for declaration and mesne profits.

9. Before assigning reasons for the above Issue, it is just and proper to know the admitted facts in respect of relationship in this case. The main propositor deceased T.Seetharama Setty and his wife Smt.Dhanalakshmi had a daughter who is Plaintiff in this case and three sons, one T.S.Shashikumar, T.Suresh(defendant No.2) and T.S.Prabhakar(Defendant No.3) in this case. The eldest son T.S.Shashikumar died unmarried on 15/05/1967. There is no controversy regarding the relationship in between the Plaintiff and Defendants.

10. Here it is the contention of the Plaintiff that herself, her mother1st defendant, brothersdefendant No.2 and 3 along with their father T.Seetharama Shetty, 23 OS.NO.83592008 constituted a Hindu Undivided Family and his father T.Seetharama Shetty died on 07/11/1964 leaving behind his legal heirs i.e plaintiff and defendants and he left behind immovable and movable properties belongs to Hindu Undivided Family. It is also the case of the plaintiff that the said Hindu Undivided Family had also a joint family business run in the name and style M/S.Tallam Subbaraya Setty and Sons, of which Late Sri T.Seetharama Shetty was one of the partners. Therefore the Plaintiff submits that she is also entitled to the profit, shares and goodwill of suit schedule 'B' property. Therefore the Plaintiff submits that as on the date of death of Late Sri T.Seetharama Shetty, suit schedule 'A' and 'B' properties were the Joint Family properties of Plaintiff and Defendants.

11. Here the Plaintiff has to establish her case standing on the strength of her own legs, but not on the weakness of the Defendants. The heavy burden lies on the Plaintiff as to prove that as on the date of filing of this suit the schedule 'A' & 'B' properties were standing as the joint 24 OS.NO.83592008 family properties of Hind Undivided Family comprising of Plaintiff and Defendants.

12. But here on perusing the Written Statement filed by Defendant No.3, his only contention is that the Plaintiff and her grandmother Smt.Chinnasubbamma together executed Partition Deed by relinquishing their right in all the suit schedule properties dt.14.12.1966 in favour of Defendants 1 to 3 and deceased Sri T.Shashikumar. So also the Mother of Plaintiff and Defendants 2 and 3 by name Smt.Dhanalakshmi i.e., deceased Defendant No.1 has also executed Relinquishment Deed dt.14.12.2006 by relinquishing her right over the suit schedule properties in favour of M/S.Tallam Subbaraya Setty and Sons. Therefore the burden lies on the Plaintiff as to prove that as on the date of filing of this suit, suit schedule A and B properties are the joint family properties of Plaintiff and Defendants 1 to 3.

13. In order to prove Issue No.1, it is just and proper to know the oral and documentary evidence by the 25 OS.NO.83592008 side of Plaintiff. Here the Plaintiff adduced her oral evidence as PW1 by filing Sworn Affidavit and in further chiefexamination of PW1, the documents produced by her are marked as Ex.P1 to P5. Here the facts narrated in the sworn affidavit filed by PW1 are nothing but repetition of the pleadings of the plaint and hence again it need not require further explanation.

14. Here PW1 produced Ex.P1 & Ex.P2, the Encumbrance Certificates which clearly depict with regard to Partition Deed dt.14.12.1966, which is the Partition Deed in which the Plaintiff and her grand mother Chinnasubbamma who is Mother of Late Sri T.Seetharama Shetty have relinquished their right over the suit schedule properties. Ex.P3 is the certified copy of Partition Deed dt.14.12.1966 and its translation copy in English language is marked as Ex.P3(a). Ex.P4 is the certified copy of Release Deed executed by Smt.Dhanalakshi dt.14.12.2006 in favour of M/S.Tallam Subbaraya Setty and Sons, HUF represented by its Kartha P.Suresh S/o Late Sri T.Seetharama Shetty. 26

OS.NO.83592008

15. Here the Plaintiff has not produced any RTC extract, Mutation Extract or any other relevant revenue document as to prove that as on the date of filing of this suit, Item Nos.1 to 5 of Part I & II of suit schedule 'A' and 'B' properties were standing in the name of Late Sri T.Seetharama Shetty during his life time. So also PW1 has not produced any document to show that after death of Late Sri T.Seetharama Shetty in the year 1964, the suit schedule properties devolved to the deceased Smt.Dhanalakshmi, Plaintiff, Defendants 2 and 3, and late T.Sashikumar,by way of succession. Here in the cross examination of PW1 there are so many admissions, which itself sufficient to prove that as on the date of filing of this suit, the suit schedule properties were not at all joint family properties of Plaintiff and Defendants as an undivided Hindu Joint Family properties. In the crossexamination of PW1 dt.20.7.2018 in page 8, she deposed her evidence which is reiterated in Kannada as ''zÁªÁ J µÀ q À Æ å¯ï ¸À é vÀ Ä Û U À ¼ À Ä AiÀ i ÁªÀ jÃw dAn PÀ Ä lÄA§zÀ C¹Û U À ¼ À Ä EgÀ Ä vÀ Û ª É JAzÀ Ä £À £ À U É UÉ Æ wÛ ® è . 27

OS.NO.83592008 £Á£À Ä zÁªÁ J µÀ q À Æ å¯ï ¸À é vÀ Ä Û U À ¼ À §UÉ Î AiÀ i ÁgÀ £ À Ä ß AiÀ i ÁªÀ v À Ä Û PÉ Ã ¼À ® Ä ºÉ Æ ÃVgÀ Ä ªÀ Å ¢®è . zÁªÁ J µÀ q À Æ å¯ï£À MAzÀ £ É Ã C¹Û ªÀ Ä £É U É ¸À A §AzÀ ¥ À l Ö zÁR¯É U À ¼ À £ À Ä ß £Á£À Ä £É Æ ÃrgÀ Ä ªÀ Å ¢®è . '' This itself goes to show that as on the date of filing of this suit, the suit schedule properties were not at all joint family properties and the said fact was not within the knowledge of PW1. In the crossexamination of PW1 dt.20.8.2018, PW1 deposed her evidence which is reiterated in Kannada as ''£À £ À U É w½zÀ ªÀ Ä nÖUÉ zÁªÁ ¸À é vÀ Ä Û U À ¼ À ° è vÉ Æ Ãj¹zÀ ZÀ P ï§A¢UÀ ¼ À £À q À Ä ªÉ EzÀ Ý zÁªÁ ¸À é vÀ Ä Û U À ¼ À Ä EgÀ Ä vÀ Û ª É A iÉ Æ Ã CxÀ ª Á E®è ª É Ç Ã J£À Ä ßªÀ Å zÀ Ä £À £ À U É UÉ Æ wÛ ® è . '' In the crossexamination of PW1 dt.14.9.2018, PW1 deposed that she does not know about the existence of item Nos.1 to 5 in part II of suit schedule 'A' property. Further PW1 deposed in the same crossexamination, which is reiterated in Kannada as "zÁªÉ A iÀ Ä °è g À Ä ªÀ zÁªÁ ¸À é vÀ Ä Û U À ¼ À Ä EgÀ Ä ªÀ ¤d ¸À A UÀ w AiÀ Ä £À Ä ß w½zÀ Ä PÉ Æ ¼À î zÉ ªÀ Ä vÀ Ä Û CªÀ Å C¹Û v À é zÀ ° è EgÀ Ä vÀ Û z É A iÉ Ä Ã E®è ª É Ç Ã C£À Ä ßªÀ Å zÀ £ À Ä ß «ZÁj¸À z É F zÁªÉ A iÀ Ä £À Ä ß ºÁQgÀ Ä vÉ Û Ã £É . " So these admissions in the crossexamination of PW1 as stated 28 OS.NO.83592008 above clearly goes to show that as on the date of filing of this suit the suit schedule 'A' and 'B' properties were not at all joint undivided family properties of Plaintiff and Defendants. Till the death of Late Sri T.Seetharama Shetty in the year 1964, the entire suit schedule properties were standing in the name of Late Sri T.Seetharama Shetty who is father of Plaintiff, Defendants 2 and 3 and husband of deceased Defendant No.1. Here in the crossexamination of PW1 at page 9 dt.20.7.2018, she deposed that item No.1 of part I of suit schedule 'A' property which is the house property stood in the name of her father Late Sri T.Seetharama Shetty and after his death, it was transferred in the name of her Mother Dhanalakshmi, who is Defendant No.1. But no such document is produced by PW1 as to prove that the name of Smt.Dhanalakshmi is entered in respect of item No.1 of part I of suit schedule 'A' property after death of Late Sri T.Seetharama Shetty who is father of Plaintiff and husband of deceased Defendant No.1. Further in the crossexamination of PW1 dt.14.9.2018, she deposed 29 OS.NO.83592008 about existence of shares stood in the name of her father about 54 years back in respect of suit schedule 'B' property. This goes to show that PW1 had no knowledge about nature of the suit schedule property as to prove whether the suit schedule properties were joint in nature at the time of filing of this suit. Here on perusing the crossexamination of PW1 page 14 dt.14.9.2018, she deposed that she has not got issued notice in the name of M/S.Tallam Subbaraya Setty and Sons, in order to know whether the firm M/S.Tallam Subbaraya Setty and Sons is existed or not. Therefore from the crossexamination of PW1, the admissions as stated supra clearly reveals that the Plaintiff utterly failed to prove that as on the date of filing of this suit, suit schedule 'A' and 'B' properties were standing joint in nature as Hindu Undivided Family properties comprising of Plaintiff and Defendants. Therefore the initial burden as to prove that whether the suit schedule properties are the joint family properties comprising of Plaintiff and Defendants is not discharged by the Plaintiff. 30

OS.NO.83592008

16. Here in the crossexamination of PW1 she deposed that soon after her marriage, she went to her matrimonial house and leading her matrimonial life with her husband. The marriage of Plaintiff was held in the year December, 1965. If at all the Plaintiff has retained her legally enforceable right to claim a share in the suit schedule properties, she could have demanded her share in the suit schedule properties as soon as she begotten son in the year 1972. Therefore in the crossexamination of PW1 dt.7.2.2019, she deposed that after the son born to her in the year 1972, she has not at all demanded any share to her Mother, the deceased Defendant No.1. Further PW1 in her crossexamination dt.7.2.2019 deposed that she has not at all verified nor seen the documents in the name of M/S.Tallam Subbaraya Setty and Sons which is partnership firm mentioned in the schedule of the plaint as suit schedule 'B' property. Therefore from the admissions in her crossexamination, clearly goes to show that the suit 31 OS.NO.83592008 schedule 'A' and 'B' properties were not at all stood as joint in nature at the time of filing of this suit by the Plaintiff.

17. Here as per the reported decision in AIR 1947 PC 189 in the case between Appalaswami V/s Sooryanarayanamurthy, it is observed by the Hon'ble Supreme Court of India, at para 18 that the legal principle is that there is no presumption of a property being joint family property only on account of existence of joint Hindu family. The one who asserts has to prove that the property is joint family property. So here also the Plaintiff in the case on hand, utterly failed to prove as on the date of filing of this suit, the suit schedule properties were stood as joint family properties of the joint family comprising of herself and Defendants. Further in the crossexamination of DW1, there is no any contradiction or admission as to prove that as on the date of filing of this suit, the suit schedule properties were joint in nature as undivided Hindu Joint Family properties of Plaintiff and Defendants. 32

OS.NO.83592008

18. Here counsel for the Plaintiff relied on the reported decision in AIR 2020 SC 3717 in the case between Vineetha Sharma V/s Rakesh Sharma, wherein the Hon'ble Supreme Court of India has come to the conclusion that the daughter is also entitled to her share along with the son in respect of ancestral or coparcenery property. So also in the said reported decision the Explanation to Section 6(5) provides that for the purposes of Section 6, partition means effected by any registered partition deed or effected by a decree of a court. Therefore all dispositions, alienations, testamentary depositions, including partition effected prior to 20.12.2004,shall not be reopened. Here admittedly the Plaintiff relinquished her rights in the registered Partition Deed executed dt.14.12.1966 in favour of Defendants 2 and 3, deceased Defendant No.1 and her elder brother deceased T.Shashikumar. Therefore relying on the above said Judgment and also admissions in the crossexamination of PW1, it is certainly proved that as on the date of filing of this suit the suit schedule properties were not at all stood 33 OS.NO.83592008 as joint in nature as Hindu Undivided Family properties comprising of Plaintiff and Defendants. Accordingly Issue No.1 is answered in the Negative.

Issue No.3,4,5 and 6:

19. I have taken up these Issues together for common discussion, since all these Issues are interrelated to each other and burden of proving these Issues lies on the Plaintiff.

20. Here in the pleadings of the plaint as well as in the Sworn Affidavit filed by the Plaintiff as PW1, she took contention that in the year 2008, she came to know that Defendants 2 and 3 fraudulently created documents to deprive her share in the schedule properties and she came to know as early as in the year 1966 soon after her marriage when she was hardly 19 years old, having no knowledge of the family properties and funds, a document dated 14/12/1966 alleged to be a partition deed was got executed by her brothers fraudulently, forcing their mother, the 1st defendant to get signature of the plaintiff, and the 34 OS.NO.83592008 2nd and 3rd defendants along with their brother T.S.Shashi Kumar who was living at that time, and Late Sri T.Seetharama Shetty had obtained the signature of the plaintiff fraudulently by exercising undue influence on her.

21. Further it is pleaded in the plaint as well as in para 4 of the Sworn Affidavit filed by PW1 that there was no consideration amount of Rs.50,000/ paid to her which was stated to have been shown as paid by crediting to the Account of the plaintiff in the Books Account of the firm M/s.Tallam Subbraya setty and sons. Therefore the alleged deed dated 14/12/1966 captioned as 'partition deed' has no legal effect whatsoever and not binding on her. Further PW1 stated in her Sworn Affidavit that the 2nd and 3rd defendants had requested her to sign some papers and she signed in good faith without questioning them and it is not known to her for what purpose her signatures were obtained. Further it is pleaded by the Plaintiff in the plaint as well as in the Sworn Affidavit that her Mother, the 1 st defendant was suffering from Alzheimer's disease in the 35 OS.NO.83592008 year 200304 and the thumb impression of 1 st defendant was obtained at residence when she was not knowing what she was doing and incapable of knowing the contents and nature of the document alleged to be the Release deed dated 14/12/2006 and the same is registered by the 2 nd defendant fraudulently. Further plaintiff stated that though 1st defendant was literate enough, she used to sign in Kannada. Further PW1 stated that the recitals made in the alleged Release deed dated 14/12/2006 showing cash consideration of Rs.1,00,000/ is absolutely false and the entire document is a fabricated one and invalid in law. Pw has further stated that the alleged Release deed dated 14/12/2006 had been taken in favour of the Hindu Undivided Family M/s T.Seetharama Setty which is not at all a legal person or legal entity capable of executing any document or in whose favour a document can be executed. Therefore, the said document dated 14/12/2006 was created fraudulently to deprive the share of the plaintiff in Item No.1 of the schedule property and the said document 36 OS.NO.83592008 is in invalid in law and not binding on the plaintiff. Further plaintiff submits that there is no any partition in respect of the schedule properties among the Hindu Undivided Family so far after the death of T.Seetharama Setty.

22. In para 7 of the Sworn Affidavit, PW1 stated that Defendants 2 and 3 have obtained her signature on pliant paper without telling the contents and purpose fo the alleged document dt.14.12.1966. PW1 further stated that the said document was executed when she was hardly 19 years old, having no knowledge of the family properties and funds. She had signed on the blank papers, only because of trust reposed by her on Defendants 2 and 3. Therefore the contention of PW1 is that her elder brother T.Shashikumar who was alive at that time and Defendant No.2 might have utilized the said paper for executing the alleged Partition Deed dt.14.12.1966. Hence it is the contention of PW1 that she has nsot given any consent to the alleged Partition Deed dt.14.12.1966 and has not received any money from the Defendants.

OS.NO.83592008

23. So here looking to the pleadings of the plaint, it is the contention of the Plaintiff that, the Defendants 2 and 3 and deceased T.Shashikumar who are brothers of the Plaintiff influenced deceased defendant No.1 for putting her signature on Ex.P3. Here vague or general plea cannot serve the purpose. Mere pleadings with regard to fraud or undue influence which requires the pleadings in precise nature and the manner of use of the undue influence and unfair advantage obtained by Defendants 2 and 3 hs to e pleaded in the plaint. Therefore the Court has to scrutinize the pleadings with regard to alleged undue influence and fraud being played by the Defendants on the Plaintiff while executing Ex.P3. Therefore there must be specific and precise pleading required u/O 6 Rule 4 of C.P.C. in order to know how and in which manner on what purpose the Defendants 1 to 3 got executed Ex.P3 from the Plaintiff on 14.12.1966. So here to know how far the Plaintiff succeeded to prove that Ex.P3 is created by Defendants 2 and 3 and deceased T.Shashikumar by using undue 38 OS.NO.83592008 influence on deceased defendant No.1 and obtained signature of the Plaintiff. At this juncture, it is just and proper to scrutinize the oral and documentary evidence by the side of Plaintiff. Here in the crossexamination of PW1, she admitted that she has studied upto 10 th standard in English medium. She further admitted that she married with a person who is professionally Doctor. She further admitted that when she married with her husband in the year 1966, she was well versed in reading and writing English language. Therefore PW1 in her crossexamination of dt.20.8.2018 categorically admitted that she herself readover and got the notice of contents of Ex.P3. PW1 also admitted that she usually put her signature in English language. She also admitted that the contents of Ex.P3 is written in English language. Further in the cross examination of PW1, at page 10, she deposed that she put her signature on Ex.P3 out of love and affection and on the say of her brothers Defendants 2 and 3 and deceased T.Shashikumar. PW1 also deposed that at the time of 39 OS.NO.83592008 putting her signature on Ex.P3, her brothers Defendants 2 and 3 and deceased T.Shashikumar had informed about the contents of Ex.P3. Therefore PW1 in her cross examination admitted and deposed which is reiterated in Kannada as ¤.¦.3PÉ Ì £Á£À Ä ¸À » ªÀ i ÁqÀ Ä ªÁUÀ AiÀ i ÁgÀ z À Ä MvÀ Û q À E¢Ý g À ° ®è . £Á£À Ä ¤.¦.3PÉ Ì ¸À » ªÀ i ÁqÀ Ä ªÁUÀ ªÀ i Á£À ¹ PÀ ª ÁV DgÉ Æ ÃUÀ å ªÁVzÉ Ý £ À Ä . In the crossexamination of PW1 dt.14.9.2018, the counsel for Defendant No.3 put a question to PW1 which is reproduced in Kannada language as ಪಪಶಶಶಶ £Á£À Ä ¤.¦.3PÉ Ì ¸À » ªÀ i À Á qÀ i À ª ÁUÀ £À £ À ß CtÚ vÀ ª À Ä Aä¢gÀ Ä AiÀ i ÁªÀ jÃw ªÉ Æ Ã¸À ª À i Ár ¸À » ªÀ i Ár¹PÉ Æ ArgÀ Ä vÁÛ g É ? GB ¸ ಾಕಕ £À £ À ß CtÚ vÀ ª À Ä äA¢gÀ Ä £À £ À ß ªÉ Ä Ã¯É EnÖgÀ v À P À Ì AvÀ º À ¦Ãw «±Áé¸À z À ªÉ Ä Ã¯É CªÀ g À ºÉ Ã ½PÉ A iÀ Ä ªÉ Ä ÃgÉ U É ¤.¦.3PÉ Ì £Á£À Ä ¸À » ªÀ i ÁrgÀ Ä ತಶತತನಶ ಎಎದದ ¸ÁQë ºÉ Ã ¼À Ä vÁÛ g É . This goes to show that there was no any undue influence or fraud committed by Defendants while executing the Partition Deed in which the Plaintiff has relinquished her rights over the suit schedule properties. At page 11 of her crossexamination, PW1 deposed that she does not know Ex.P3 placed before the Sub Registrar in the 40 OS.NO.83592008 Sub Registrar's Office. Therefore from the entire cross examination of PW1 at page 10,11 and 14 goes to show that the Plaintiff herself voluntarily without any undue influence or fraud from any Defendants' side, put her signature on Ex.P3 out of her own volition. Further in the crossexamination of PW1, she deposed and admitted how far Defendants 2 and 3 played fraud has not been known to her as pleaded at para 4 of the Sworn Affidavit of PW1. So also PW1 admitted that she does not know how far under what circumstances and what purpose, Defendants 2 and 3 deceived her. So also PW1 admitted that he had love and affection on her brothers Defendants 2 and 3. Further in the crossexamination of PW1 at page 8 she deposed which is reiterated in Kannada as "£Á£À Ä ªÀ Ä zÀ Ä ªÉ A iÀ i ÁzÀ £À A vÀ g À £À ª À Ä ä UÀ A qÀ £ À ªÀ Ä £É A iÀ Ä ªÀ g À PÀ q É ¬ ÄAzÀ £À ª À Ä ä vÀ ª À g À Ä ªÀ Ä £É U É AiÀ i ÁªÀ Å zÉ Ã DPÀ ë É Ã ¥À u É A iÀ Ä £À Ä ß EnÖgÀ ° ®è CAzÀ g É ¤d." This goes to show that the Plaintiff after relinquishing her right over the suit schedule 'A' and 'B' properties in the year 1996 as per Ex.P3, has not at all demanded share in the suit schedule properties without 41 OS.NO.83592008 filing of this suit. This goes to show that it was within her knowledge about the execution of Ex.P3 and on her own volition. Therefore there was no any undue influence or fraud or coercion being played by Defendants 2 and 3 and deceased T.Shashikumar and deceased defendant No.1 on PW1 while executing Ex.P3. So, therefore the Plaintiff after knowing the contents of Ex.P3, put her signature on Ex.P3 by fixing the consideration amount of Rs.50,000/ to be given to PW1 . Here in the crossexamination of PW1, she admitted that after death of her father Late Sri T.Seetharama Shetty, her mother, deceased defendant No.1 took entire responsibility of the family consisting of Defendants 2 and 3 and deceased T.Shashikumar. So here in the crossexamination of PW1 and in the Sworn Affidavit of PW1 at para 4, she categorically not admitted that he has received Rs.50000/ and relinquished her right while executing the Partition Deed as per Ex.P3. But here DW1 produced Ex.D23 and Ex.D24 which are the books of accounts of M/S.Tallam Subbaraya Setty and Sons. Here 42 OS.NO.83592008 looking to the contents of Ex.P3, its translation copy is marked as Ex.P3(a). Looking to Ex.P3 at para 2, it is mentioned that for the share of First party, the Plaintiff in this case, under the entire estate of Late Sri T.Seetharama Shetty, an amount of Rs.50000/ has been paid on 11.10.1965 by placing the same at her credit in the books of accounts of M/S.Tallam Subbaraya Setty and Sons and a portion in the said amount has been withdrawn by the Plaintiff herself towards marriage expenses and cost of making jewelry at the time of her marriage. Further it is stated that whatever the balance remained in the credit of the account of the Plaintiff, may be drawn by herself at any time if she intended. So here the First and Second Parties( Plaintiff and deceased Chinnasubbamma) relinquished their right over the suit schedule properties. Here looking to the further chiefexamination of DW1( Defendant No.3), the relevant portion on Ex.P23 marked as Ex.P23(a) to (r), wherein at relevant pages, the amount is mentioned in the name of Plaintiff. So also 43 OS.NO.83592008 Ex.D24 which is the statement of accounts book of M/S.Tallam Subbaraya Setty and Sons VolumeII, the relevant portion is marked as Ex.D24(a) to (therefore), clearly goes to show that the amount of Rs.50,000/ has been kept in the credit of Plaintiff in the books of accounts which are marked as Ex.D23 and 24. In the cross examination of DW1, he admitted that Ex.D23 and D24 are the Ledger accounts. But they are the account books kept for the purpose of producing the same before the Income tax authorities, showing for the purpose of assessing the income tax returns. Therefore in the crossexamination of DW1 dt.5.3.2021, he deposed that the Plaintiff herself deposited the remaining balance amount after deducting the marriage expenses in her account maintained by the Firm. Here on Ex.P23 at page 5 and 6, it is mentioned an amount ofj Rs.45,623/ is deposited on 30.6.1974. Here the counsel for the Plaintiff argued that Ex.P23 and 24 are not the ledger accounts and therefore they cannot be considered as documentary evidence. The counsel for the 44 OS.NO.83592008 Plaintiff relied on reported decsion in (2000) 1 Supreme Court cases 434 and S.A.No.163/2008 decided on 27.11.2014. In caption C, the Hon'ble Supreme Court of India commented on Sec.34 and 65 private extracts of alleged account books are not admissible in evidence - they can only be treated as secondary evidence, if proper foundation is laid for adducing such evidence u/s 65 or other provisions of the Act. In page 435 of the above reported decision the Hon'ble Supreme Court of India observed that u/s O.S.No.3473/2008 sanctity is attached in the law of evidence to books of account if the books are indeed 'account books' i.e., in original and if they show, on their face, that they are kept in the regular course of business, then only those books of accounts are in the form of a book with continuous page numbering. So here these Ex.P23 and P24 produced by DW1 are the account books kept in the ordinary course of business being carried by M/S.Tallam Subbaraya Setty and Sons which is the partnership firm. Therefore on the basis of Ex.D23 and D24, 45 OS.NO.83592008 the evidence adduced by PW1 is a proper foundation to establish that the Plaintiff in this case kept the account as credit in her account in the firm called M/S.Tallam Subbaraya Setty and Sons. Therefore the evidence adduced by DW1 on Ex.D23 and 24 would be upheld and treated as secondary evidence u/s 63 fo the Indian Evidence Act. Therefore the decision relied on by the counsel for the Plaintiff would not be applicable to the present case on hand as DW1 has produced the original accunt books kept by M/S.Tallam Subbaraya Setty and Sons while carrying the ordinary business or transaction. Therefore from the admissions in the crossexamination of PW1 and also in the evidence of DW1 it is proved that an amount of Rs.50,000/ has fixed as a consideration to be paid for the Plaintiff while she relinquishing her right over suit schedule 'A' and 'B' properties. Here the counsel for the Plaintiff relied on reported decision in ILR 2007 Kar 4020, wherein the Hon'ble High Court of Karnataka commented on Sec.74 of the Registration Act, 1908. Sec.74 of the Registration Act 46 OS.NO.83592008 has given power to the District Registrar to hold an inquiry and come to the conclusion as to whether a document has been executed. Further observed that execution does not mean merely signing by way of ascent to the terms of the contract embodied in the document. But here on perusing the crossexamination of PW1 she unequivocally admitted that after execution of Ex.P3 she used to visit her mother and brothers. So here mere registration of the instrument is not deemed to be that document is executed. The due execution of the document has to be proved. But here PW1 in her crossexamination not only admitted the registraton of Ex.P3, but also admitted that she voluntarily without influenced by any other person, put her signature after she acknowledged the contents written on Ex.P3. Therefore the observation made in the above reported decision of Hon'ble High Court of Karnataka is not applicable to the case on hand looking to the evidence and admissions in the cross examination of PW1 in her crossexamination. 47

OS.NO.83592008

24. Here counsel for the Plaintiff relied on the decision of the Hon'ble Madras High Court in Appeal Suti No.1213/1979 decided on 25.11.1986 in the case between Kuppuswamy Gounder Vs.Karuppathal( Respondents) and the case decided on 13.2.1997 in the case between Selvaraju Kounder Vs.Sahadeva Kounder, wherein the Hon'ble Madras High Court at para 22 held that as per Sec.17 of the Indian Contract Act, 1872, 'Fraud' means and includes any of the following acts committed by a party to a contract or with the connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract. Further it is the duty of the parties to the contract to disclose the material facts to other, because the sources of knowledge of the other may be limited.

25. Here looking to the crossexamination of PW1 at page 10,12,14,15 and 17 her admissions goes to show that at the time of execution of Ex.P3, Defendants 2 and 3 have informed and readover the contents fo Ex.P3 to her 48 OS.NO.83592008 and further deposed that she put her signature after she came to know about the contents of Ex.P3. Such being the admissions in the crossexamination of PW1, then question of fraud u/s 17 of the Indian Contract Act, as observed by the Hon'ble Madras High Court is not at all applicable to the case on hand. Therefore analyzing the oral evidence adduced by PW1 and documentary evidence and admissions in the crossexamination of PW1 and also from the evidence of DW1 on Ex.P23 and P24, it is proved that the Plaintiff utterly failed to prove that the Defendants got executed the Partition Deed dt.14.12.1966 by practicing fraud and undue influence as contended in her Sworn Affidavit at para 4 and 5 and also in the pleadings of the plaint. Therefore Ex.P3 is binding on the Plaintiff.

26. It is the vehement argument submitted by the Plaintiff that Ex.P3 and P3(a) is not the Partition Deed, but it is a Release Deed. Therefore the Plaintiff being a joint family member of main predecessor Late Sri T.Seetharama Shetty is having right to get her legitimate share in the suit 49 OS.NO.83592008 schedule property. Here the Court has to know the contents or tenor of Ex.P3 in order to know whether Ex.P3 is the Partition Deed under which the Plaintiff has relinquished her right in the common property or ancestral and joint family property of the Late Sri T.Seetharama Shetty is construed as a Partition Deed. Here in Ex.P3(a) the First Party is the Smt.Shantha W/o Srinivasa Murthy( the Plaintiff ) and Second party is Smt.Chinnasubbamma who is grand Mother of Plaintiff and w/o Late Sri T.Seetharama Shetty and Smt. Dhanalakshmi( deceased defendant No.1) is the Third party and deceased T.Shashikumar is the Fourth party. T.Suresh is the 5th party and T.S.Prabhakar is the 6th party represented by his mother as guardian as he was minor in the year 1996. In para 3, it is clearly mentiioned that all the family members of Late Sri T.Seetharama Shetty, Plaintiff, Defendants 1 to 3 and deceased T.Shashikumar unanimously with the consent of the parties fixed Rs.50000/ to be paid to the Plaintiff by placing the same in 50 OS.NO.83592008 her credit account in the books of Firm M/S.Tallam Subbaraya Setty and Sons. In Ex.P3 it is mentioned jthat the Plaintiff Shanta has fully relinquished her interest in favour of parties 3 to 6 i.e., Defendants 1 to and deceased T.Shashikumar out of her affection for them. Then in last page on Ex.P3 all the suit schedule 'A' and 'B' properties mentioned in the schedule of the plaint have been mentioned, which cleraly goes to show that deceased defendant No.1, Defendants 2 and 3 and deceased T.Shashikumar continued as HUF in respect of all the suit schedule properties. But the Plaintiff has relinquished exclusively her right in respect of all the suit schedule properties as per Ex.P3. But here the argument submitted by the counsel for the Plaintiff is not at all tenable, because as per his contention Ex.P3 is the Partition Deed as admitted in the crossexamination DW1. So under these circumstances there is no separate Deed of relinquishment or release deed executed by the PlaintiffShantha in respect of suit schedule properties in favour of Defendants 1 to 3, 51 OS.NO.83592008 deceased T.Shashikumar as per Ex.P3. Therefore the contention of the counsel for the Plaintiff is that claiming her legitimate shae in all the suit schedule properties is still subsisting.

27. Here as per the reported decision of Hon'ble High Court of Karnataka in the case between T.N.Nanjunda Setty and Anr. Vs. The state of Mysore, at para 21, it is observed that the real test is the intended result as to know whether all the coparceners or coowners executed by obtaining shares, and while it is only the releasor that executes a release. Hence when a partition is effected amongst common owners, there is necessarily release of interest in respect of the shares allotted exclusively to each of the owners by the others. But this only means that everytransaction of partition is a transaction of release also. Thus a release may relate to the settlement of a doubtful claim and there may be cases of release in which the releasor does not obtain for himself any portion of the common property,as when the release is without 52 OS.NO.83592008 consideration or when the consideration comes from outside the common property. In the case of a partition there is a double or multiple release accompanied by the acquisition of full right by each of the coowners in the portion of the common property allotted to him. Thus while every release may not represent a partition of the common property, every partition necessarily involves a double or multiple release. This only leads to the conclusion that a partition is a specific kind of release. If the Statute contains two provisions, one relating to transactions which come under a general category and the other to transactions under a special category though in the same general category the later transactions are necessarily governed by the provision relating to the special category of transactions. So here as per reported decision if the releasor gets consideration, then the document make it clear that executants are intended to get cash assets which formed part of the common property. Therefore the document in question is instrument of partition.

OS.NO.83592008

28. Here the principles laid down in the above reported decision rightly applicable to the facts and circumstances of the case on hand, because it was decided while executing Ex.P3, an amount of Rs.50000/ to be paid to the Plaintiff out of the common property and that has been kept in the credit account of the Plaintiff maintained by M/S.Tallam Subbaraya Setty and Sons which is the partnership firm. Here looking to Ex.D23 and D24 produced by PW1, in sundry creditors, the name of Plaintiff has been mentioned. The Sundry Creditor means, a person who is assisted to the business transaction or render the personal service to the Firm, then the sundry creditor is also entitled to get the remuneration. Therefore in this case the Plaintiff relinquished her exclusive right over suit schedule 'A' and 'B' properties by executing Ex.P3 which is the Partition Deed. Therefore in a Partition Deed, any one of the coowners can relinquish right for consideration, then the said instrument is also construed as a Partition Deed which is observed by 54 OS.NO.83592008 the Hon'ble High Court of Karnataka in the above reported decision.

29. Here on perusing the crossexamination of PW1, she has not admitted the suggestion suggested by the counsel for Defendant No.2 at para 16 dt.7.2.2019 denying that she does not know whether she was a party to the suit in O.S.No.686/1997. She also not admitted the compromise held in RFA No.619/2005. Here DW1 produced Ex.D8 to D14, which are the certified copies of plaint and Written Statement filed by Defendants and Ex.D15 is the certified copy of of Judgment & Decree passed in passed in O.S.No.686/1997, Ex.D16 is the vakalat filed by T.Suresh and T.Prabhakar who are Defendants 2 and 3 in this case, Ex.D17 is the certified copy of vakalat filed by Smt.Shantha who is Plaintiff in this case. Here looking to plaint in O.S.No.686/1997, deceased defendant No.1 deceased Smt.Dhanalakshmi was placed as Defendant No.25 and T.Suresh ( Defendant No.2) as Defendant No.26 and T.Prrabhakar placed as Defendant No.27( Defendant No.3) 55 OS.NO.83592008 and Smt.Shantha who is Plaintiff in this case was placed as Defendant No.28. So here O.S.No.686/97 was decreed asper Ex.D15 and then RFA No.619/2005 was preferred. When the case posted for judgment before the Hon'ble High Court of Karnataka, the compromise petition was filed . So in the said compromise petition as per Ex.D26 and D27, in page 18 it is mentioned that Defendants 22,23,24,25 and 28 have also signed the compromise petition and agreed to the same making it clear that they will have no claim. So here Defendant No.28 is none other than the present Plaintiff. So here the Plaintiff knowing well that she has already relinquished her right over the suit schedule properties, has submitted before the Hon'ble High Court of Karnataka while compromising as per Ex.D26 as she had no claim. This goes to show that Ex.P3 has been acted upon, because as deposed in the crossexamination of PW1 out of love and affection on her mother and brothers, she put signature on Ex.P3 and relinquished her right by fixing consideration amount of Rs.50000/ to be payable to 56 OS.NO.83592008 her and the same is deposited in the credit account of her which is maintained by M/S.Tallam Subbaraya Setty and Sons. Therefore looking from any angle the Plaintiff utterly failed to prove that deceased defendant No.1, Defendants 2 and 3, and deceased T.Shashikumar played fraud and by playing undue influence got created Ex.P3 by obtaining her signature.

30. Here in para 4 and 5 of the Sworn Affidavit and pleadings of the plaint at para 4,6 and 7, it is the allegation of the Plaintiff that her Mother, the 1 st defendant was suffering from Alzheimer's disease in the year 200304 and there was no proper medical care and assistence given to deceased defendant No.1 by Defendants 2 and 3 and she was totally neglected. It is also contention of the Plaintiff that the thumb impression of 1st defendant was obtained at residence when she was not knowing what she was doing and incapable of knowing the contents and nature of the document alleged to be the Release deed dated 14/12/2006 and the same is registered by the 2 nd defendant 57 OS.NO.83592008 fraudulently. Further it is the contention of the plaintiff that since more than two years earlier to 14.12.2006, deceased defendant No.1 was not in a position to recognize the Plaintiff and her organs and senses were impaired. Further it is stated by the Plaintiff that though 1 st defendant was literate enough, she used to sign in Kannada. In the chiefexamination of PW1, the Release Deed got executed by deceased defendant No.1 is marked as Ex.P4(certified copy) and its original marked as Ex.D6 produced by DW1. Therefore the contention of the Plaintiff is that the document dt.14.12.2006 is fabricated and invalid in the eye of law. Here first of all the Plaintiff has adduced her oral evidence as PW1 and she has no any locustandi to question the genuinity and validity of Ex.P4. Because when PW1 has relinquished her exclusive right over the suit schedule 'A' and 'B' properties. Further looking to Ex.P4, the original is marked Ex.D6, whrein the age of deceased Smt.Dhanalakshmi is mentioned as 84 years. That means deceased Smt.Dhanalakshmi is age old woman and could 58 OS.NO.83592008 not able to put her signature as her hands were shaking as deposed in the crossexamination of DW1. Therefore she put her thumb impression on each page of Ex.D6 and her themb impression was also identified on page 9. therefore in this case Item No.1 of part I of suit schedule 'A' properties released by deceased defendant No.1 in favour of M/S.Tallam Subbaraya Setty and Sons HUF, headed by T.Suresh. Here on perusing Ex.P3 the Item No.1 of Part I of suit schedule A property has been allotted to deceased Smt.Dhanalakshmi who is deceased defendant No.1. As admitted in the crossexamination of DW1, Item No.1 of Part I of suit schedule A property has been purchased by Late Sri T.Seetharama Shetty during his life time out of his own earning. Therefore as admitted in the cross examination of PW1 deceased Smt.Dhanalakshmi who is deceased defendant No.1 was residing with her sons after death of her husband Late Sri T.Seetharama Shetty in the year 1964 in the house built in Item No.1 of Part I of suit schedule A property. In the month of December, 2008, 59 OS.NO.83592008 deceased Smt.Dhanalakshmi died and prior two years back before her death, deceased Smt.Dhanalakshmi has executed release deed as per Ex.P4. So here HUF continued even after execution of Ex.P3 and also on executing Ex.P4. So here how far Ex.p4, original Ex.D6, created fraudulently by Defendants 2 and 3 is to be known by scrutinizing the oral evidence of PW1.

31. Here looking to the crossexamination of PW1 page 15 dt.14.9.2018 she admitted that she has not produced any medical report of her mother to show that her mother was suffering from Alzheimer disease. At page 19 of her crossexamination, she admitted that her husband and son are Doctors by profession. When such being the truth, what prevented her to get provide treatment to her mother deceased Smt.Dhanalakshmi with the assistance of her husband and son who are Doctors by profession. She categorically admitted that though her husband was running private clinic, has not given treatment to deceased Smt.Dhanalakshmi and there is no such medical report as to 60 OS.NO.83592008 prove that her husband and son assisted her mother for giving treatment. At para 17 of her crossexamination, PW1 admitted that her brother deceased T.Shashikumar, Defendants 2 and 3 were cordial and cooperative with their Mother deceased Smt.Dhanalakshmi and her mother was cremated as per the customs of the family by her brothers Defendants 2 and 3. This goes to show that there was no any illwill between deceased Smt.Dhanalakshmi with her sons Defendants 2 and 3 prior to execution of release deed as per Ex.P4. As admitted in the crossexamination of PW1 at para 17 and 18, Defendants 2 and 3 were residing in Item No.1 of Part I of suit schedule A property and Defendant No.2 is residing in I floor and Defendant No.3 is residing in ground floor. PW1 deposed that she does not know whether there was a partition took place in between Defendants 2 and 3 in respect of suit schedule properties. This goes to show that even after death of deceased Smt.Dhanalakshmi, HUF continued in between Defendants 2 and 3. In the year 200607 prior to death of deceased 61 OS.NO.83592008 Smt.Dhanalakshmi, as per crossexamination of PW1, she used to attend all ceremonies or programmes being conducted in her family. This goes to show that in the year 200607 deceased Smt.Dhanalakshmi was physically and mentally healthy. However PW1 alleged that prior to executing Ex.P4 two years back, deceased Smt.Dhanalakshmi was suffering from Alzheimer disease and her senses were impaired and she was not able to recognize Plaintiff and her family members. When such being the allegation made by PW1, then what prevented her from producing the medical reports as to prove that deceased Smt.Dhanalakshmi was suffering from Alzheimer and her organs were impaired. In the crossexamination of of PW1 she admitted the photocopy of her mother which is affixed on Ex.P4. But she utterly failed to prove in which manner, the Defendants 2 and 3 by playing fraud, got created Ex.P4. Even looking to the crossexamination of DW1 he categorically admitted that his Mother deceased Smt.Dhanalakshmi executed release deed as per Ex.D6 only 62 OS.NO.83592008 in respect of Item No.1 of Part I of suit schedule A property which is house property purchased to Late Sri T.Seetharama Shetty out of his own earning during his life time. Therefore as per Ex.P3, the Item No.1 of Part I of suit schedule A property Written Statement allotted to deceased Smt.Dhanalakshmi and rest of remaining suit schedule properties have been allotted to Defendants 2 and Defendant No.3 and their brother deceased T.Shashikumar. Therefore the HUF continued even after executing Ex.P3 and P4. In the crossexamination of PW1 at page 16 in the year 1972, it came to her knowledge that her Mother had assured to give a share to her after birth of a son to her. This goes to show that all the family affairs which were being held in the family of Late Sri T.Seetharama Shetty was known to the Plaintiff. In the crossexamination of PW1 at page 19, she deposed that her brothers Defendants 2 and 3 informed about execution of Ex.P4 after two months of death of deceased Smt.Dhanalakshmi. When in the cross examination of PW1 page 18 she admitted that her Mother 63 OS.NO.83592008 used to attend all the ceremonies and programmes being conducted in the family of Late Sri T.Seetharama Shetty, then what was the hurdle for PW1 to enquiry about the family affairs and family properties of Late Sri T.Seetharama Shetty. This goes to show that execution of Ex.P4 & Ex.D6 was well known to the Plaintiff in the year 2006 prior to filing of this suit. Here the Plaintiff has utterly failed to prove the fraud, undue influence and coercion being practiced by the side of Defendants 2 and 3 and got executed Ex.P3 and P4.

32. Here in the crossexamination of PW1, at page 14, she simply deposed which are the suit schedule properties sold out. But after the Plaintiff executed the relinquishment deed as per Ex.P3, Item No.2 of Part I of suit schedule A property was sold out by Defendant Nos.2 and 3 and deceased defendant No.1 by executing Sale Deed dt.6.8.1973 and as per Ex.D2 Item No.1 of Part I of suit schedule A property was sold out by executing Sale Deed dt.24.1.1980 so also as per Ex.D3, the Sale Deed executed 64 OS.NO.83592008 by Defendants 2 and 3 dt.24.1.1980. Ex.D4 and D5 are also Sale Deeds executed by Defendants 2 and 3. Ex.D18 is the Sale Deed executed by deceased Smt.Dhanalakshmi and only a portion of site bearing old No.56 New No.6 was sold out. As per Ex.D19, Defendant No.2 and Defendant No.3 represented by his Mother deceased Smt.Dhanalakshmi and also deceased Smt.Dhanalakshmi herself sold out northern half portion in item No.3 part I of suit schedule 'A' property. The Plaintiff is the witness who put her signature on Ex.D19, So also Ex.D20 is the Sale Deed executed by deceased Smt.Dhanalakshmi and Defendants 2 and 3 dt.13.9.1972. This goes to show that the Plaintiff knowing well about all these proceedings in respect of suit schedule properties and one of the signatories for Ex.D19, deposing in her crossexamination that she does not know about the sale of anyone of the suit schedule properties as suggestion suggested by the counsel for the Defendants. This goes to show that the Plaintiff has suppressed the material facts with regard to sale transaction held after she executed the 65 OS.NO.83592008 release deed as per Ex.P3 and also the transaction held after deceased Smt.Dhanalakshmi executed release deed as per Ex.P4, original marked as Ex.D6. Therefore the Plaintiff utterly failed to prove that Defendants 2 and 3 got created and executed the release deed from deceased Smt.Dhanalakshmi as per Ex.P3 and P4. When the fraud has been pleaded in the plaint, such fraud must be proved by the party who has alleged the fraud. Here looking to the crossexamination of PW1 she admitted about registration of Ex.P3 and P4 and also admitted that there is no undue influence played by Defendants 2 and 3 while get executing the Ex.P4, original marked as Ex.D6. Therefore the Plaintiff must prove the said fraud and Plaintiff is not relieved of her obligation merely because the Defendants told an untrue story in the Written Statement. Therefore there is no sufficient creditworthiness available in the oral evidence of PW1 in order to prove how far Defendants 2 and 3 got executed and created Ex.P4, original marked as Ex.D6 by 66 OS.NO.83592008 playing fraud. Hence the Plaintiff utterly failed to prove Issue Nos.5 and 6.

33. Here it is the firm contention of Defendant No.3 that the Plaintiff has relinquished her right over the suit schedule properties by relinquishing her right in the suit schedule properties under Partition Deed registered dt.14.12.1966. So also Defendant No.3 took contention that his Mother deceased Smt.Dhanalakshmi executed release deed dt.14.12.1966 as per Ex.D6 adn relinquished her share in Item No.1 of Part I of suit schedule A property . Here DW1 relying on the admissions in the crossexamination of PW1 and also documentary evidence and contents of Ex.P3 and P4 and Ex.D6, proved that the Partition Deed dt.14.12.1966 through which the Plaintiff relinquished her right in the suit schedule property and also proved that her Mother deceased Smt.Dhanalakshmi relinquished her right in respect of Item No.1 of Part I of suit schedule A property in favour of M/S.Tallam Subbaraya Setty and Sons headed by Kartha T.Suresh. I have elaborately discussed while 67 OS.NO.83592008 answering Issue Nos.5 and 6 how far the Plaintiff not succeeded in proving the fraud, undue influence and coercion being played by Defendants 2 and 3 while executing Ex.P3, P4 and D6.

34. Here the counsel for the Defendants relied on reported decision in AIR 2005 KAR 426 in the case between Ranganayakamma V/s K.S.Prakash. At para 52, it is observed by the Hon'ble High Court of Karnataka that the party pleading fraud or misrepresentation will have to not only plead the details, but will have to lead evidence in support of such allegations. A person who charges another with fraud must himself prove the fraud, and he is not relieved from this obligation because the defendant has told an untrue story. Therefore Order 6, Rule 4 of the Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. Therefore it is not the mere use of the general words such as 'fraud' or 'collusion' that, can serve as a foundation for the plea. In this case also it is a simply a general allegation 68 OS.NO.83592008 by the Plaintiff that Defendants 2 and 3 and Defendant No.1 colluding each other got created Ex.p3, but looking to the crossexamination of PW1, she unequivocally admitted that Defendants 2 and 3 have not played any fraud and undue influence with the assistance of deceased defendant No.1 for perusing the mind of the Plaintiff for putting signature on Ex.P3. Therefore on perusal of plaint averments which do not set out with reasonable precision, the particulars, so as to constitute allegations of fraud and misrepresentation, by defendants 1 and 2 in this case. Further in para 68 of the above reported decision it is observed by the Hon'ble High Court of Karnataka that the nomenclature of the document, which reads "partition deed", while its contents disclose a release and relinquish of the right to claim a share in the family property by the sisters. In para 71 of the above reported decision, it is observed that A partition is an agreement between two or more persons who are bound by it, whereas a release deed is a onesided document which binds the executant alone. A 69 OS.NO.83592008 release in law may be effected either for consideration or for no consideration. In para 76 of the said Judgment, the Hon'ble High Court of Karnataka observed and referred the case decided by Privy Council in the case between Md. Ihtisham Ali v. Jairmna Prasad, AIR 1922 Privy Council 66 observed that Registration is a solemn act and if no other evidence is available the Court can presume that the Registrar performed his duty of satisfying himself that the document presented to him for registration was duly executed by the executants and the executant was duly and properly identified before him. So here in this case Ex.P3 and P4 are the registered instruments and there is no contrary evidence placed by the Plaintiff by way of rebuttal evidence to disprove that Ex.P3 and Ex.P4(original Ex.D6) are not duly executed registered instruments. Therefore perusing the crossexamination of PW1, she admitted that before she put her signature on Ex.P3, the contents of Ex.P3 were readover and explained to her by Defendants 2 and

3.Then the said registered document remains unrebutted 70 OS.NO.83592008 and the Plaintiff has not placed no legal evidence to substantiate that Ex.P3 and Ex.P4( original Ex.D6) are not duly executed registered documents. Therefore relying on the above reported decision, the Defendants proved that Ex.P3 and Ex.P4( original Ex.D6) are the duly executed registered instruments, binding on the Plaintiff.

35. The counsel for the Defendant No.3 relied on another reported decision in ILR 1993 KAR 1606 in the case between Krishnaswamy Naidu Vs.Jagannatha Naidu, wherein the Hon'ble High Court of Karnataka at para 10 commented on Order 6 Rule 4, Civil P.C., which provides that in all cases in which the party pleading relies on undue influence, particulars shall be stated in the pleading. The reason of the rule is : A plea that a transaction is vitiated because of undue influence of the other party. But a vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. 71

OS.NO.83592008 Therefore in the case on hand PW1 in her cross examination admitted that after death of her father Late Sri T.Seetharama Shetty, her mother deceased Smt.Dhanalakshmi was living with her sons Defendants 2 and 3 in Item No.1 of Part I of suit schedule A property . Therefore there was cordial relationship in between Defendants 2 and 3 and deceased Smt.Dhanalakshmi. So also PW1 admitted in her crossexamination that her mother deceased Smt.Dhanalakshmi used to visit her relatives for celebrating ceremonies. This goes to show that how can Plaintiff say that Defendants 2 and 3 have influenced their Mother deceased defendant No.1 deceased Smt.Dhanalakshmi for executing Ex.P3 and obtained signature of Plaintiff.

36. In para 4,6, and 7 of the plaint and also in para 4,5 and 6 of the Sworn Affidavit, it is the allegation of the Plaintiff that her Mother, the 1st defendant was suffering from Alzheimer's disease in the year 200304 and was not in a position to recognize the Plaintiff. and her organs and 72 OS.NO.83592008 senses were impaired and she was bed ridden and not able to recognize the things as her vision was poor. Further the Plaintiff categorically stated that her Mother was not mentally sound in the year 2003. When such being the allegations made by the Plaintiff, then why she has not filed application u/O 32 Rule 15 of C.P.C. which apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being suit. So here Order 32 Rule 15 CPC application for appointment of guardian in accordance with the said provision has to be filed and then the Court has to enquiry to know the mental condition of the person being sued. Here as per the contention of the Plaintiff, her Mother deceased Smt.Dhanalakshmi died on 17.12.2008 two days after filing of this suit . Here the age of deceased defendant No.1 is mentioned as 86 years in the causetitle. So here when the 73 OS.NO.83592008 Plaintiff has already got knowledge about the mental condition of her Mother then she could have filed application for appointment of guardian for representing deceased defendant No.1 or file an application u/O 32 Rule 15 of C.P.C. for enquuiry in order to know the unsound mind of deceased defendant No.1 as alleged in the plaint. So the allegation made by the Plaintiff alleging that Defendants 2 and 3 got created Ex.P4( original Ex.D6) when her mother was suffering from Alzheimer disease is totally false and baseless. Therefore the decision relied on by Defendant No.3 is rightly applicable to the case on hand, because the suit filed by the Plaintiff against the deceased defendant No.1 is a distinctive unless filing application for appointment of guardian represented on behalf of deceased defendant No.1. Therefore relying on the above reported decisions and admissions in the crossexamination of PW1 and oral and documentary evidence by the side of DW1, it is proved that Ex.P3 and Ex.P4(original Ex.D6) are the genuine and valid documents binding on the Plaintiff. 74

OS.NO.83592008 Therefore Court answered Issue Nos.5 and 6 in the Negative and Issue Nos.3 and 4 in the Affirmative. ISSUE NO.7:

37. In this case the Defendant No.3 filed independent Written Statement. In the Written Statement,the Defendant No.3 took contention at para 4 that the suit filed by the Plaintiff is liable to be dismissed as barred by limitation. The Plaintiff approached this Court after the period of 42 years. Here admittedly the Plaintiff has relinquished her right by executing Partition Deed as per Ex.P3.Her membership as a coparcener is continued.

Generally the cause of action in a suit for partition is a recurring one and any coparcener shall file suit for partition to get legitimate share in ancestral or coparcenery property must be existed at the time of filing of the suit. But in this case the Plaintiff filed this suit on 15.12.2008 for partition and separate possession and also declaration. But in the crossexamination of PW1 her admissions clearly goes to show that she put her signature on Ex.P3 after she got 75 OS.NO.83592008 knowledge about the contents written on Ex.P3 from her brothers Defendants 2 and 3. Ex.P3 is the registered document.

38. Here the counsel for the Plaintiff relied on the decision reported in ILR 2007 Kar 4020if any person by whom the document purports to be executed denies its execution, then the Registering Officer shall refuse to register the document. If the SubRegistrar refuse to register the document. The District Registrar must u/s 74 of the Registration Act must satisfy that the executant had signed the sale deed after satisfied and the executant should have come to the conclusion that the signature had been affixed after understanding the contents and the tenor of the document. Further observed that execution does not mean merely signing, but signing by way of assent to the terms of the contract of alienation embodied in the document. Therefore the contention of the Plaintiff is that Ex.P3 is not a duly executed document as her signature obtained by playing fraud by Defendants 2 and 3. But in the cross 76 OS.NO.83592008 examination of PW1 she unregistered admitted that she put her signature after she acknowledge the contents of Ex.P3 on the information of her brothers Defendants 2 and 3. under these circumstances the PW1 has falsely alleged that Defendants 2 and 3 took her signature on blank papers, which is baseless and groundless allegation without support of any oral and documentary evidence. Therefore the above reported decision relied on the Plaintiff would not applicable to the case on hand.

39. The counsel for the Plaintiff relied on the reported decision in (2004)9 Supreme Court Cases 468, wherein it is observed that when fraud, misrepresentation or undue influence is alleged by a party in a suit, normally the burden is on him to prove such fraud, misrepresentation or undue influence. Further observed that but when a person is in an active, confidential or fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is 77 OS.NO.83592008 upon the person in the dominating position and he has to prove that there was fair play in the transaction and the said transaction is genuine and bona fide. Further it is observed that it is always obligatory for the beneficiary under a document to prove due execution of the document in accordance with law. Here this observation made by the Hon'ble Supreme Court of India, the fiduciary relationship in between the advocate and client, principal and agent, trust and trustee, then the person who is beneficiary has to prove due execution of the document. But here the Plaintiff and Defendants 2 and 3 are the sister and brothers and coparceners. Therefore the fiduciary relationship does not arise as there is a fake belief, love and affection is to be noted in such relationship. In the crossexamination of PW1 she admitted that she voluntarily put her signature on Ex.P3 and there was no fraud or misrepresentation being played by Defendants 2 and 3 while executing Ex.P3. Therefore under these circumstances when the Plaintiff herself pleaded that Ex.P3 and Ex.P4(original Ex.D6) are 78 OS.NO.83592008 created and manipulated by Defendants 2 and 3 by playing fraud and undue influence, then the heavy burden lies on the Plaintiff to prove that Ex.P3 and Ex.P4(original Ex.D6) are created and concocted by Defendants 2 and 3. therefore the observation made by the Hon'ble Supreme Court of India in the above reported decision would not at all applicable to the facts and circumstances of the case on hand.

40. Here at para 4 of the plaint, the Plaintiff pleaded that her Mother deceased Smt.Dhanalakshmi expressed her intention before her that after birth of a son to her in the year by name C.S.Ravikumar, the Plaintiff is entitled to a share in the immovable properties owned by Late Sri T.Seetharama Shetty which has not been given to her. But in this case the Plaintiff relinquished her right in all the suit schedule properties in the year 1966 by executing Ex.P3 which is proved by Defendants 2 and 3. In the crossexamination of PW1 she deposed that after death of his father Late Sri T.Seetharama Shetty, her Mother 79 OS.NO.83592008 deceased Smt.Dhanalakshmi used to visit the house of her relatives and she herself used to goto her parents house to participate in ceremonies. PW1 also deposed that her Mother deceased Smt.Dhanalakshmi used to informed about the transaction in respect of family properties. Then what prevented the Plaintiff to demand her share even in 1972 or in the occasion on which her Mother used to visit her house and vice versa. This goes to show that the Plaintiff knowing that she had no right in the joint family properties i.e., suit schedule properties has not demanded any share by filing a suit within 12 years from the date of execution of Ex.P3 or in the year 1972 when her Mother expressed her intention to give a share to the Plaintiff after birth of her son C.S.Ravishankar. So from the pleadings of the Written Statement and the oral evidence of DW1 and admissions in the crossexamination of PW1 goes to show that the Plaintiff has been excluded from claiming her share in the suit schedule properties soonafter execution of the Partition Deed as per Ex.P3. While giving reason for Issue 80 OS.NO.83592008 No.1, the curt has relied on admissions of PW1 who deposed that she filed this suit without knowing as to whether the suit schedule properties remained as joint family properties or not at the time of filing of this suit. This goes to show that when the suit schedule properties were not at all stood as joint family properties at the time of filing of this suit, itself sufficient to presume that the Plaintiff has been excluded from claiming her share soonafter she relinquished her share while executing Partition Deed as per Ex.P3. As per Article 110 of Limitation Act, a person who has been excluded from joint family property has to institute a suit to enforce a right to share therein within a period of 12 years when the exclusion becomes known to the Plaintiff. It means the Plaintiff has to file suit within 12 years from the date of exclusion becomes known to him. But her the suit is filed by the Plaintiff after 42 years of execution of Partition Deed dt.14.12.1966 through which the Plaintiff has exclusively relinquished her right over the suit schedule properties. So in the oral 81 OS.NO.83592008 evidence of PW1 or in the pleadings of he plaint, it is not stated as to why such a delay caused for filing of this suit by the Plaintiff to claim her share. Therefore on the date of filing of this suit , the suit schedule properties were not at all joint family properties of Plaintiff and Defendants. The Plaintiff has been excluded from the joint family properties to claim her share. Therefore Article 110 of Limitation Act,1963 would be applicable to this case and the suit filed by the Plaintiff is barred by limitation.

41. In the crossexamination of PW1 she categorically denied about the suggestion suggested by the counsel for the Defendant No.3 that she does not know O.S.No.686/97 filed by T.Nanjundashetty, Bhagyalakshmi and another for partition and she is also one of the parties in the said suit. But here looking to Ex.P8 which is the certified copy of the plaint in O.S.No.686/97, deceased defendant No.1 deceased Smt.Dhanalakshmi, T.Suresh, T.Prabhakar and Smt.Shanthakumari who is Plaintiff in this case are Defendants 25 to 28 and Defendant No.28(present 82 OS.NO.83592008 Plaintiff) though appeared through counsel, but not filed Written Statement. However on the Judgment & Decree passed in passed in O.S.No.686/97, RFA No.619/2005 was preferred before the Hon'ble High Court of Karnataka and all the parties to the suit compromised the subject matter of the suit involved in O.S.No.686/97 and the present Plaintiff who was Defendant No.28 in O.S.No. 686/97 put her signature on the said compromise petition before the Hon'ble High Court of Karnataka in RFA No.619/2005 which is observed in page 18 of para 7a of the compromise petition, wherein the present Plaintiff put her signature admitting that she will have no claim whatsoever as against the Plaintiffs and other supporting Defendants in the said compromise. This fact has been suppressed by the Plaintiff.

42. Further in this case DW1 produced Ex.D1 which is the Sale Deed dt.6.8.1973 executed in respect of Item No.2 of Part I of suit schedule A property with regad to property No.1/2 situated at Sheshadripuram. The Defendants 2 and 3 executed Sale Deeds as per Ex.D2 to 83 OS.NO.83592008 D4 dt 24.1.1980 respectively with regard to Item No.1 of Part II of suit schedule A property . Ex.D18 is the Sale Deed executed by deceased Smt.Dhanalakshmi dt.21.4.1966 in respect of Item No.3 of Part I of suit schedule A property. So also as per Ex.D19, which is the Sale Deed executed by Defendants 2 and Defendant No.3 represented by his Mother and natural guardian deceased Smt.Dhanalakshmi while selling northern half portion in western half portion of site bearing No.56 i.e., Item No.3 of Part I of suit schedule A property. For that Sale Deed, the Plaintiff is a witness and put signature. Again on 13.9.1972, Defendants 1 to 3 together executed Sale Deed with regard to property No.53, which is Item No.2 of Part II of suit schedule A property. This goes to show that all these transactions were within the knowledge of Plaintiff. When Plaintiff put her signature as a witness on Ex.D19, then the Plaintiff ought to have seek the relief of declaration that all the above Sale Deeds are void and not binding on her. But in the cross examination of PW1 she simply deposed that she does not 84 OS.NO.83592008 know the Sale Deeds executed by Defendants 1 to 3 after execution of Ex.P3 and even prior to execution of Ex.P3 and subsequently in respect of suit schedule properties, as per Ex.D20 which is Sale Deed dt.13.9.1975. In the cross examination of PW1 and as per the pleadings of the plaint at para 4, her mother deceased Smt.Dhanalakshmi expressed her intention to give a share in the suit schedule properties to the Plaintiff after birth of her son C.S.Ravishankar in the year 1972. then the Plaintiff ought to have file suit for partition within 12 yeas from the dage of execution of Ex.D20, which was within the knowledge of Plaintiff. Therefore suit filed by the Plaintiff is barred by limitation.

43. Here when th Plaintiff alleged that Ex.P4(original Ex.D6) is a created and concocted document by Defendants 2 and 3 by colluding with Defendant No.1 by playing fraud and undue influence, then the Plaintiff ought to have seek the relief of declaration for cancellation of Ex.P3 as per Sec.31 of the Specific Relief Act. The Plaintiff 85 OS.NO.83592008 has to file the suit for cancellation of registered instrument i.e., Ex.P3 within three years when the facts entitling the Plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him, as per Article 59 of Limitation Act, 1963. Here the Plaintiff got knowledge to get her share in the year 1972 when her Mother deceased Smt.Dhanalakshmi expressed her willingness to give her a share in the suit schedule property after birth of a son C.S.Ravishankar in the year 1972. In the crossexamination of PW1 she categorically admitted that she voluntarily put her signature after knowing the contents of Ex.P3 from her brothers Defendants 2 and 3. When such being the version of Plaintiff, then the Plaintiff ought to have file suit for declaration for cancellation of the registered instrument Ex.P3 within three years, because she came to know about the registered Partition Deed asper Ex.P3 in the year 1966 or she has to file a suit within 12 years when she came to now she has got her legitimate share in the suit schedule properties when her Mother 86 OS.NO.83592008 deceased Smt.Dhanalakshmi expressed before her in the year 1972. therefore the suit filed by the Plaintiff is within limitation. Hence the Court answered Issue No.7 in the Negative.

ISSUE NO.8:

44. In the Written Statement, the Defendant No.3 took contention that the valuation made by the Plaintiff on the relief sought for is improper and Court Fee paid is insufficient. But here looking to the valuation made by the Plaintiff goes to show that she paid Court Fee u/s 35(2) of Karnataka Court Fee & Suit Valuation Act only in respect of her 1/3rd share in all the suit schedule properties. Since the sit is for partition and separate possession, then the Court Fee paid by the Plaintiff u/S 35(2) of Karnataka Court Fee & Suit Valuation Act is proper. There is no any evidence by the side of Defendant to prove that the valuation made by the Plaintiff on the relief sought for is improper and the Court Fee paid by the Plaintiff is sufficient. Hence the Court answered Issue No.8 in the affirmative.

OS.NO.83592008 ISSUE NOS.2 AND 9:

45. While answering Issue Nos.1,5 and 6 this Court elaborately discussed and held that the Plaintiff has utterly failed to prove as on the date of filing of this suit, the suit schedule properties were the joint family properties of herself and the Defendants and further the Plaintiff also utterly failed to prove that Defendants 2 and 3 in collusion with deceased defendant No.1 got created Ex.P3 and Ex.P4(original Ex.D6) by playing fraud and undue influence. Further the suit filed by the Plaintiff is not within limitation and the same is not at all maintainable. Therefore viewed from any angle, looking to the admissions in the crossexamination of PW1 and evidence of DW1 and documentary evidence goes to show that the Plaintiff is not entitled to any share in the suit schedule properties. The admissions in the crossexamination of PW1 with support of oral evidence of DW1 proved that the Plaintiff in the year 1966 relinquished her share while executing Partition Deed as per Ex.P3. Hence the Plaintiff is not entitled to any share 88 OS.NO.83592008 in the suit schedule properties. Accordingly Court answered Issue Nos.2 and 9 in the Negative. ISSUE NO.10:

46. In view of the foregoing discussions and observations made in all the issues, the Court proceed to pass the following:

ORDER Suit filed by the Plaintiff against the Defendants is hereby dismissed.

Parties are directed to bear their own costs. (Dictated to the Judgment Writer, corrected, signed and then pronounced by me in the open Court on this the 10 th Day of June, 2021) (Devanand P.Nayak) XXXVIII Addl. City Civil & Sessions Judge, Bangalore City.

ANNEXURE

1. List of witnesses examined for plaintiff:

PW1 Smt.Shantha

2. List of documents exhibited for plaintiff :

     Ex.P1 & 2        Encumbrance Certificate. ( 2)
     Ex.P3            Certified copy of the partition deed dated
                               89
                                             OS.NO.83592008

                     14.12.1966.
      Ex.P.3a        Typed copy of Ex.P.3.
      Ex.P.4         Certified copy of Release deed dated
                     14.12.2006.
      Ex.P.5         Certified copy of deposit title deeds dated
                     2.2.2007.

3. List of witnesses examined for defendant:

DW1 T.S.Prabhakar

4. List of documents exhibited for defendant:

ExD 18 CC of sale deed dated 21.4.1966 executed by Smt. T.Dhanalakshmi in favour of Sri.Govindaram Taranand.

Ex.D19 CC of sale deed dated 21.4.1966 executed by Smt.T.N.Shashi Kumar in favour of Govindaram Taranand.

Ex.D20 CC of sale deed dated 13.9.1972 executed by T.V.R.Guptha & others in favour of Smt. Kantha R Mehatha.

Ex.D.21 Encumbrance certificate for a period of & 22 April 1971 to March 1974. (2) Ex.D23 The statement of account book of M/S Thallam Subbaraya Shetty & sons VolumeNo.I Ex.D23(a) Relevant portion at page No.415 Sl.No.536 Ex.D23(b) Relevant portion at page No.417 Sl.No.4 Ex.D23(c ) Relevant portion at page No.424 Sl.No.21 Ex.D23(d ) Relevant portion at page No.427 Sl.No.519.

Ex.D23(e) Relevant portion at page No.443 Ex.D23(f ) Relevant portion at page No.446 Ex.D23(g) Relevant portion at page No.452.

OS.NO.83592008 Ex.D23(h) Relevant portion at page No.465. Ex.D23(i) Relevant portion at page No.469 Ex.D23(j) Relevant portion at page No.487 Ex.D23(k) Relevant portion at page No.490 Ex.D23(l) Relevant portion at page No.501. Ex.D23(m) Relevant portion at page No.504 Ex.D23(n) Relevant portion at page No.522. Ex.D23(o) Relevant portion at page No.535 Ex.D23(p) Relevant portion at page No.538. Ex.D23(q) Relevant portion at page No.553 Ex.D23(r) Relevant portion at page No.556 Ex.D.24 The statement of account book of M/S Thallam Subbaraya Shetty & sons VolumeNo.II Ex.D24(a) Relevant portion at page No.568 Ex.D24(b) Relevant portion at page No.572 Ex.D24(c) Relevant portion at page No.580 Ex.D24(d) Relevant portion at page No.581 Ex.D24(e) Relevant portion at page No.587 Ex.D24(f) Relevant portion at page No.588 Ex.D24(g) Relevant portion at page No.590 Ex.D24(h) Relevant portion at page No.591 Ex.D.25 CC of order sheet in RFA No.619/05 Ex.D.26 CC of Judgment and decree in RFA No.619/05 Ex.D.27 CC of Compromise Petition submitted in RFA No.619/05 Ex.D.28 Notarized Power of attorney dated 26.9.2019 executed infavour T.S.Prbhakar.

{Order is uploaded subject to correction} XXXVIII Additional City Civil & Sessions Judge,Bangalore City.

91 OS.NO.83592008

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Smt. Shantha vs Smt.Dhanalakshmi( Deleted As Per Order on 10 June, 2021